Bombay High Court
Pralhad Dagdu Thorat vs The State Of Mah on 17 October, 2024
2024:BHC-AUG:25330
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO. 634 OF 2005
Pralhad S/o. Dagdu Thorat,
Age : 45 years, Occu. : Rickshaw Driver,
R/o. Plot No.93, Sonya Maruti Colony,
Dhule, Tq. & Dist. Dhule. .... Appellant
(Orig. Accused)
Versus
The State of Maharashtra .... Respondent
(Orig. Complainant)
...
Mr. N. L. Choudhari h/f. Mr. Ravindra Shinde, Advocate for Appellant
Mrs. Ashlesha S. Deshmukh, APP for Respondent - State.
...
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 10 OCTOBER, 2024
PRONOUNCED ON : 17 OCTOBER, 2024
JUDGMENT :
1. In this appeal, there is challenge to the judgment and
order dated 31.08.2005 passed by 4th Ad-hoc Additional Sessions
Judge, Dhule in Sessions Case No. 6 of 2005, recording guilt of
appellant for offence punishable under section 307 of Indian Penal
Code (IPC).
FACTUAL MATRIX
2. Appellant was charge-sheeted on accusations that, he
used to beat and ill-treat his wife Rekhabai on trifle counts.
Because of such treatment, mother had lodged complaint in the
court of Jalgaon. Still, he continued to ill treat her to suspect her
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character. On 21.12.2004, he laced her glass of water with some
tablets and made forcibly drink it, due to which she fell uneasiness
and was taken to civil hospital, Dhule, where her statement was
recorded by PW3 Virsing and made the basis for registration of
crime bearing No.199 of 2004 for offence punishable under
sections 498-A, 307 and 323 IPC, which was investigated by PW1
PSI Sushir and after completing investigation and gathering
evidence, appellant was charge-sheeted.
Appellant Pralhad was tried vide Sessions Case No.6 of
2005 by 4th Ad-hoc Additional Sessions Judge, who accepted the
case of prosecution as regards to offence under section 307 IPC
only and acquitted him of remaining charge of 498A and 323 IPC.
Feeling aggrieved by the above judgment and order of
conviction, instant appeal has been preferred.
SUBMISSIONS
On behalf of Appellant :-
3. Learned counsel would submits that there is false
implication due to strained matrimonial relations. That, there was
already matrimonial dispute. It is pointed out that, allegations are
now raised that poison was administered through drinking water,
but it is pointed out that, there is no evidence about administration
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of poison. Learned counsel submitted that, there is CA report of
analysis and stomach wash is negative and therefore this itself had
falsified complainant's version.
4. He further pointed out that, PW2 Priyanka daughter
was said to be in the house at the time of alleged incident. She had
not seen appellant in the house at that time. That, in her evidence
she merely spoke appellant leaving the house. Therefore, no
convincing and cogent evidence that, appellant administered
poison. He pointed out that, even testimony of daughter PW2
Priyanka is not supported by independent evidence. According to
learned counsel, medical expert admitted that, there was no threat
to life and so he questions the finding of trial court for offence
under section 307 IPC. He submitted that, except evidence of PW2
Priyanka, there is no trustworthy evidence and therefore he
questions the findings and conclusions drawn by learned trial court
and prays to set aside the same.
On behalf of Respondent :-
5. In answer to above, learned APP pointed out that,
appellant husband mal-treated wife and beat her by suspecting her
character. Therefore, she had lodged case against him in the court
that, on 21.12.2004, he forcibly administered poison in the form of
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tablets. Daughter PW2 Priyanka, who was in the house and shifted
her mother to the hospital has seeing appellant running away after
administering poison. Medical experts, who examined Rekhabai
noticed sedative being administered. She pointed out that, because
quantity was small, chemical analysis was negative. She pointed
out that, there is direct eye witness in the form of PW2 Priyanka.
That, there is no reason for false implicating father itself. That, she
has witnessed to the ill treatment and therefore learned APP
submitted that learned trial Judge has correctly relied on the
version of PW2 Priyanka and has recorded the guilt and hence
according to her, findings and judgments being infallible, the same
may not be interfered with.
EVIDENCE BEFORE TRIAL COURT
6. PW1 PSI Sushir, Investigating Officer, who recorded
statement of victim (Exh.12) and on its basis registered the crime
for offence under sections 307 and 323 IPC.
PW2 Priyanka, daughter of appellant and victim,
claims to be present in the house on 21.12.2004 at 8:30 p.m. She
claims that after hearing noise, she went to the kitchen and saw
appellant abusing her mother and later on heard noise of glass
falling on the ground and also saw father leaving the place from the
backdoor. On inquiry, her mother told that, her father put
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poisonous tablets in the water and administered it to her. Due to
which, her mother complained of uneasiness and giddiness and she
shifted her to civil hospital.
PW3 Special Executive Magistrate, who recorded
statement of Rekhabai (Exh.17).
PW4 API Vadnere, who conducted investigation and
charge-sheeted accused.
PW5 Dr. Prashant Shinde, Medical Officer at Dhule Civil
Hospital, who prepared medical papers and gave treatment. He
also collected stomach wash and sent it to laboratory. He also
certified fitness statement on being approached by police.
ANALYSIS
7. Here, out of five witnesses, two are police witnesses i.e.
one who recorded statement and other who investigated crime.
One is the Special Executive Magistrate and one is Medical Officer
and remaining witness is daughter. Surprisingly, Rekhabai is not
examined by prosecution.
8. The substantive evidence of PW2 Priyanka, who is the
star witness is already dealt in aforesaid paragraph. Her evidence
is that, her father ill treated her mother, suspected her chastity
and assaulted her and hence, her mother lodged complaint in
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court. Regarding the incident she stated that, around 8:30 p.m.
while she was studying, her father was talking with her mother in
the kitchen and she claims to have heard filthy words uttered by
her father. So she claims to have rushed towards the kitchen i.e.
after hearing noise of glass falling on the floor and that time she
claims she saw her father left the from the backdoor. She claims
that she made inquiry with her mother, upon which mother told
that her father put poisonous tablets in the water and forcibly
administered to her. Her mother complained of uneasiness and
giddiness and was taken to hospital.
While under cross, in paragraph no.5, which is relevant,
she answered that, on 18.05.2005 her mother committed suicide
by hanging while she was residing with grandfather and
grandmother. She further admitted that, her father had filed
H.M.P. No.37 of 2001 against her mother for restitution of conjugal
rights. She denied quarrel between her parents on the ground of
poor financial position of appellant. Omissions are brought in
paragraph no. 7 to the extent that she heard noise of glass falling
on the ground and she rushing to the kitchen. She answered that,
she does not remember whether she stated to police about her
mother telling her that father forcibly administered the solution of
water of poisonous tablets. She stated that, she does not remember
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the exact words she narrated to police allegedly uttered by her
father. She denied seeing statement of her mother. She stated that
police did not make any inquiry on 21.12.2004. Rest is all denial.
9. Statement of victim, which was recorded at Exh.12.
She reported that, after quarreling, her husband beat her, mixed
poisonous tablets in glass of water and forcibly administered her.
10. Prosecution claims that, statement of Rekhabai was
recorded by PW3 Virsing and the same is at Exh.17. The statement
is in question answer form. Question no.7 is the relevant question
pertaining to occurrence and the answer to it in translated form
are as under :-
Question No.7 : Why occurrence took place ? Whether there
was trouble by family members ? Who all were present at the
time of incident and their names ?
Answer : "Quarrel between husband and wife. Husband raised
suspicion on character of wife. It appears that, her husband
Pralhad forcibly administered water containing medicine and
was therefore brought by daughter to civil hospital, Dhule.
Husband repeatedly put up demand of money for light bill and
troubled to her and to the children at late night."
While under cross PW3 Virsing admitted that he was
newly appointed Special Executive Magistrate and therefore did
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not read over the statement back to her. He did not seek
information as to how dying declaration is to be recorded. He
admitted that Medical Officer did not give endorsement of
consciousness to record statement.
Admittedly, remaining two witnesses are police
witnesses.
11. PW5 Dr. Prashand Shinde, another important witness,
who is a Medical Officer, in examination-in-chief itself stated that,
when he was on duty, patient by name Rekhabai was admitted with
history of some sort of sedative drugs administered by husband
forcibly on 21.12.2004 at 8:30 p.m.. He prepared case papers and
testified about giving treatment by way of antibiotic injection and
injection lasix (diuretics), antacid and injection hydrocole steroid.
He collected stomach wash and sent it to laboratory. He also
certified fitness to give dying declaration.
While under cross he admitted that, when patient was
admitted, her condition was not serious. He answered that stomach
wash obtained for confirmation of poison on sedative. He admitted
that Investigating Officer has not sent him CA report. After going
through the same, he answered that according to CA report, no
poisonous substance was found . He denied that there was no drugs
poisoning, however, he deposed that, there may be sedative drugs
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and being in minimum quantity, in C.A. report, such sedative
poison will not be detected. He again answered that after going
through the case papers and thereafter till she was discharged,
there was no danger to the life of her. He answered that, Special
Executive Magistrate did not record dying declaration from 11.15
to 11:30 p.m. of 21.12.2004 in his presence.
12. Therefore, on appreciating the above evidence, here,
two things are emerging, i.e. firstly, matrimonial discord between
Rekhabai and appellant. Secondly, allegation of forcibly
administering water containing poison. But, though admitted and
treated by PW5 Dr. Prashand Shinde, he is categorically stating
that, there was no danger to the life till she was discharged nor her
condition was serious. After going through the CA report, doctor
has admitted that no poison was detected. It is noticed that, what
doctor deposes is that, history were reported was of administering
sedative drugs, but there is no evidence in that regards.
13. Only evidence is of PW2 Priyanka daughter and she has
stated about hearing abusive words and filthy language used by her
father with her mother that night and after hearing noise of fall of
glass, she ran to the kitchen and claims that, she saw accused
leaving from back door. Even, the so called glass in which water
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mixed with poisonous tables were forcibly administered is not
seized by investigating machinery.
14. Law is fairly settled that, for attracting the charge
under section 307 IPC, prosecution is duty bound to prove
following essential ingredients :-
"(1) The accused did some act;
(2) Such act was done with intention or knowledge that hurt
was likely to be caused to the victim by the act."
15. From above discussion, what is emerging that there
were allegations of administering poison. But, stomach wash
analysis ruled out poison which is evident from CA report at
Exh.10/C. PW5 Dr. Prashant Shinde categorically answered in
cross that condition of patient was not serious nor there was any
danger to life. Under such circumstances, required ingredients
under section 307 IPC are patently missing.
16. Perused the judgment under challenge. Findings of
learned trial court from paragraph no.24, 25 and 26 are not in
consonance with the evidence. Resultantly, there is incorrect
appreciation and reaching to erroneous conclusion. Hence,
interference is called for. Accordingly, I proceed to pass the
following order :-
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ORDER
I) The criminal appeal is allowed.
II) The conviction awarded to appellant Pralhad S/o. Dagdu
Thorat in Sessions Case No.06 of 2005 by learned 4 th Ad-
hoc Additional Sessions Judge, Dhule on 31.08.2005 for
the offence punishable under section 307 of Indian Penal
Code, stands quashed and set aside.
III) The appellant stands acquitted of the offence punishable
under section 307 of Indian Penal Code.
IV) The bail bonds of the appellant stands cancelled.
V) The fine amount deposited, if any, be refunded to the
appellant after the statutory period.
(ABHAY S. WAGHWASE, J.)
Tandale
